Halloween is just around the corner and if you or your kids are planning on going to a party or trick-or-treating around the neighborhood, you’ve probably already purchased costumes. Afterall, Halloween is a booming business for retailers and Americans will spend around $3.4 billion on costumes this year. If you purchased a banana suit from Kmart this year, you might be frightened to learn that a costume company, Rasta Imposta, sued Kmart over that very banana suit. Never fear, Kmart is the one that might be on the hook, not you.
Rasta Imposta filed a complaint in federal court last month alleging copyright infringement, trade dress infringement, and unfair competition. For the past several years, Kmart sourced their banana costumes from Rasta Imposta. It seems that walking around in head-to-toe polyester fruit suits is quite a popular idea, even though the logistics of walking around in it may seem unappealing. When Kmart and Rasta Imposta failed to agree on terms of this year’s deal, Kmart decided to switch vendors and leave Rasta’s “Banana Design” for dead.
The boys and ghouls at Rasta Imposta allege the costume Kmart is now selling “has the same shape as the Banana Design, the ends of the banana are placed similarly, the vertical lines running down the middle of the banana are placed similarly, the one-piece costume is worn on the body the same way as the Banana Design, and the cut out holes are similar.” And they’re not wrong. Even the marketing of the designs is similar. As shown below, both costumes are modeled with the same black pants, black long sleeve shirt, and black dress shoes.
If Rasta Imposta really has “suffered significant financial harm and irreparable harm to its reputation as a result of Kmart’s conduct” and the costumes are deemed similar enough, perhaps a court will award them treats in compensation for Kmart’s tricks.
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